The New Zealand Advertising Standards Authority has issued a short guidance note creating a presumption that user generated content on Facebook will not be treated as advertising and requiring sponsored tweets to be marked as advertisements.
New Zealand’s position is in contrast to Australia’s Advertising Standards Bureau, which found in August that a brand’s Facebook page is an advertisement, but provides some clarity for Australian businesses.
In New Zealand the presumption that a Facebook page will not be treated as advertising means it is outside the ASA’s jurisdiction.
In the guidance note published this week, New Zealand’s ASA notes there may be certain circumstances where user generated comment is advertising and provides some “preliminary areas of enquiry” that it will use to assess this.
The ASA will look at whether the advertiser originally solicited the submission of the user generated content from individuals and then adopted it and incorporated it within their own advertising, along with whether an individual provided the advertiser, on an unsolicited basis, with material that the advertiser then adopted and incorporated within their own advertising.
The ASA will also look at whether the advertiser solicited the user generated content – for example, via an invitation to enter a competition – that resulted in content being posted on the site.
The note also warns of the dangers of retweeting customer tweets (in case they are misleading) and requires people who are paid to tweet support for a product or service to add the #ad hashtag to make the endorsement obvious.
John Swinson, partner at King & Wood Mallesons, told SmartCompany the New Zealand ASA’s guidance provided some factors that could be taken into consideration in Australia when assessing whether a business is responsible for comments on its Facebook page.
“In Australia there has not been enough analysis of this issue and so it is still not very granular – there have been broad statements.”
He says the interesting part of the New Zealand guidance comes in the preliminary areas of enquiry.
“In some ways you can say it arises through factors that could be taken into consideration although they may not be the only factors,” he says.
For example, if you did not solicit the comment on your Facebook page and did not adopt it then, Swinson says, that is an argument you should make for why you should not be responsible.
“It’s the same in Australia: If a user puts up a comment and you are not aware of it and it is up for three days, would you be responsible?
“If you saw what was there and said ‘I disagree with it’, then that is not adopting the comment.”
Swinson says these issues have not been considered in Australia. Although the ASB has found some businesses are in breach for their Facebook pages, he says the bureau has so far taken into account when a business tries to do the right thing.
“We have not had a situation in place with someone out there with proper procedures and trying to do the right thing being held responsible,” he says.
In relation to Twitter, Swinson says while there is no formal guidance in Australia, the New Zealand position on sponsored tweets is not far off the legal situation here at the moment.
“We don’t have formal guidance. But if you are looking at the law; if you were out pretending to be someone who is independent and, in fact, you were being paid to say something, that would potentially be misleading and deceptive in breach of the Consumer Act,” he says.
“The issue with Twitter is that you only have so many characters and so it is hard to give full disclosure.”